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Curran v The State; Minister for Foreign Affairs; Marsipal, Narokobi and Waka, as Members of a Ministerial Committee of Review [1994] PGLawRp 610; [1994] PNGLR 230 (6 July 1994)

PNG Law Reports 1994

[1994] PNGLR 230 - Brian Curran v The State; Minister for Foreign Affairs; Arnold Marsipal, Bernard Narokobi and Lucas Waka, as Members of a Ministerial Committee of Review 

[1994] PNGLR 230

N1259

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

BRIAN CURRAN

V

THE INDEPENDENT STATE OF PAPUA NEW GUINEA;

MINISTER FOR FOREIGN AFFAIRS; AND

ARNOLD MARSIPAL,

BERNARD NAROKOBI, AND

LUCAS WAKA AS MEMBERS OF A MINISTERIAL COMMITTEE OF REVIEW

Waigani

Brown J

23 March 1994

6 July 1994

CONSTITUTIONAL LAW - Proscribed acts - Right in the nature of a right of enquiry - Enforceability - Constitution ss 41, 166(1).

CONSTITUTIONAL LAW - Section 41 action by foreign national whose visa had been cancelled and who was ordered to depart the country by the Minister responsible under the Migration Act Ch 16 - Relevant principles.

IMMIGRATION AND ALIENS - Alien - Order for revocation of entry permit - Applicability and right, if any, of review of the exercise of the Minister's powers to revoke under s 6 of the Migration Act - "Wednesbury unreasonableness" considered in that respect - Inapplicable - Proper test proposed.

Facts

The plaintiff was a foreign lawyer with a right of practice in Papua New Guinea whose entry visa was revoked by the Minister. He sought a declaration by the Court that the act of the Minister was "harsh and oppressive" within the terms of s 41 of the Constitution and, consequently, unlawful. He also claimed damages.

Held

N1>1.       The right to challenge an act in reliance on the provisions of the Constitution s 41 extends to the acts of the Minister and, consequently, a Ministerial Committee of Review appointed under the Migration Act where such acts are otherwise lawful. SCR No 5 of 1985; Re Raz v Matane [1985] PNGLR 329 applied and followed. Premdas v State [1979] PNGLR 329 applied and followed.

N1>2.       The act of revoking a foreign national's visa to remain in the country and, consequently, ordering his departure is of an executive nature and not amenable to judicial review per se. An administrative remedy in terms of what is commonly called the "Wednesbury principle" is inappropriate. Raz v Matane [1986] PNGLR 38 not followed.

N1>3.       The proper test is to consider the justification for the Minister's acts, the effects of such acts, and, on balance, decide if Constitution s 41 applies.

Cases Cited

Papua New Guinea cases cited

LeBlanc v PNG (1992) unreported, unnumbered NC.

Premdas v PNG [1979] PNGLR 329.

Raz v Matane [1986] PNGLR 38.

SCR No 1 of 1984; Re Minimum Penalties Legislation [1984] PNGLR 314.

SCR No 5 of 1985; Re Raz v Matane [1985] PNGLR 329.

Other cases cited

A-G of Hong Kong v Shiu [1983] UKPC 2; [1983] 2 AC 629; [1983] 2 All ER 346; [1983] 2 WLR 735; 127 Sol Jo 188, PC.

Associated Provincial Picture Houses Ltd v Wednesbury Corp [1947] EWCA Civ 1; [1948] 1 KB 223; [1947] 2 All ER 680; 48 LJR 190; 177 LT 641; 63 TLR 623.

Birmingham & Midland Motor Omnibus Co Ltd v London & North Western Railway Co [1913] UKLawRpKQB 128; [1913] 3 KB 850; 83 LJKB 474; 109 LT 64; 57 Sol Jo 752, CA.

R v Brixton Prison Governor; Ex parte Havilde [1969] 1 All ER 109; [1969] 1 WLR 42.

R v Secretary of State for the Home Department; Ex parte Swati [1986] 1 All ER 717; [1986] 1 WLR 477.

Counsel

P Payne, for the plaintiff.

F Damem, for the defendants.

6 July 1994

BROWN J:  This plaintiff was aggrieved by the decision of a Ministerial Committee of Review, appointed pursuant to the Migration Act Ch 16, confirming the cancellation of his entry permit. The Minister had made orders on 23 June 1992, cancelling the plaintiff's permit (visa) to remain in the country and ordering his departure. By notice of motion, the plaintiff comes to this Court pursuant to O 16 of the National Court Rules seeking judicial review. He is immediately faced with the provisions of s 19(2) of the Migration Act, which precludes a review or challenge in this Court of the act of the Minister cancelling such entry permit and ordering his removal from the country. The plaintiff seeks to circumvent that hurdle by asking this Court for a declaration that the decision by the members of the Ministerial Committee of Review and the Minister's original decision were unlawful acts, proscribed by s 41(1) of the Constitution.

N2>"41.    Proscribed Acts

(1)      Notwithstanding anything to the contrary in any other provision of any law, any act that is done under a valid law but in the particular case:

(a)      is harsh or oppressive; or

(b)      is not warranted, or is disproportionate to, the requirements of the particular circumstances or of the particular case; or

(c)      is otherwise not, in the particular circumstances, reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind,

is an unlawful act."

The Supreme Court has ruled that a Ministerial Committee of Review decision and, by implication, a Minister's act can be examined when a plaintiff seeks to attract s 41 (see SCR No 5 of 1985; Re Raz v Matane [1985] PNGLR 329). Mr Curran says that if this Court is satisfied that the circumstances of cancellation of his visa are "harsh and oppressive", orders in the nature of prerogative writs or other orders as are necessary to do justice in the circumstances of a particular case (see s 155(4) of the Constitution) can be made. An order in the nature of certiorari quashing both the second and third defendants' decisions cancelling his entry permit and ordering his removal is consequently sought. In addition, the plaintiff specifically seeks an order for compensation.

In his amended statement, filed pursuant to O 16 r 3(2)(a), the facts upon which the plaintiff seeks relief are set out. They are uncontradicted by the defendants, who appeared by Mr Damem, the State Solicitor.

FACTS

On 20 December 1991, the plaintiff was issued with a visa, pursuant to the provisions of the Migration Act, which permitted him to enter and remain in Papua New Guinea until 10 March 1993 for the sole purpose of employment with Blake Dawson Waldron, a firm of lawyers practising in Papua New Guinea. The plaintiff says that he had not breached the terms of this entry permit. The plaintiff alleges that he has, at all times, acted lawfully in Papua New Guinea. None of the defendants or officers of the Immigration Division interviewed the plaintiff before he was served with deportation orders. No statement was sought from him prior to the Minister's order of 23 June 1992, pursuant to s 6(1) and 12(1) of the Act, cancelling his entry permit and the Committee of Review's confirmation of the action on 15 July 1992. The Minister and the Committee had not informed the plaintiff of the nature of the allegations made against him before the confirmation. It was plain, however, that the reason for the Minister's act cancelling Mr Curran's visa was related to Mr Curran's professional relations with Arthur LeBlanc.

COURT PROCEEDINGS

Mr Payne, for Mr Curran, sought to show the very fact that the Minister had neither charged Mr Curran with a breach of his visa conditions, nor given reasons for his action, was, of itself, sufficient to attract the provisions of s 41. Mr Damem, on the other hand, suggested that material relevant to the Minister's determination may have been lost and, in the event, this Court could presume that the Minister, if material other than that already before the Court was used, acted properly in only taking into account relevant material. I cannot agree with Mr Damem on that point. Nor can I agree with Mr Payne that the Minister's failure is determinative of the issue.

By notice to produce, dated 18 March 1994, the file of the Migration Department was brought to Court. That became an exhibit in these proceedings, such documents having been listed in the defendant's list of documents filed on 6 May 1993. The list of documents was supported by an affidavit as to conclusiveness. The general rule is that the affidavit of documents is conclusive and must be accepted as true by the parties seeking discovery. The principle is expressed thus:

"An affidavit of documents is sworn testimony which stands in a position which is in certain respects unique. The opposite party cannot cross-examine upon it and cannot read a contentious affidavit to contradict it. He is entitled to ask the Court to look at the affidavit and all the documents produced under the affidavit, and from those materials to reach the conclusion that the affidavit does not disclose all that it ought to disclose. In that case he can obtain an order for a further and better affidavit. Further, under the particular rule relating to a specific document... he may file an affidavit specifying further documents and calling upon the party making the affidavit of documents to account for them. But subject to these qualifications the affidavit of documents cannot be called in question, but must be accepted as correct." (See Birmingham & Midland Motor Omnibus Co Ltd v London & North Western Railway Co [1913] UKLawRpKQB 128; [1913] 3 KB 850 at 855).

The principle enunciated is reflected in O 9 of the National Court Rules. Mr Damem attempted to suggest in his address that the documents forming part of those discovered were not all the documents to which the Minister had regard when he made his decision, for the Foreign Affairs Department had "moved floors and some documents were lost".

An affidavit swearing to the documents is, in my view, conclusive evidence of the totality of the material which came before the Minister in his deliberations. If that were not the case, then it would have been expedient for the Solicitor-General and lawyer for the defendants to file a further affidavit explaining how documents which Mr Damem wishes me to presume have been lost came to be lost, and the nature of such documents. Otherwise, I propose to rely on the conclusiveness of the discovered documents and the various Court proceedings as affording the Minister basis for his actions.

COURT'S RIGHT TO JUDICIAL REVIEW CURTAILED

Since the decision in Premdas v PNG [1979] PNGLR 329, the Supreme Court, in SCR No 5 of 1985; Re Raz v Matane [1985] PNGLR 329, affirmed a right of enquiry in the National Court, based on s 41 of the Constitution. In Raz's case, Kidu CJ said at 330:

"There is, in my opinion, no doubt that s 41 of the Constitution confers a right - the right to challenge an act done under a valid law".

At 332, he said:

"Section 41 creates a right but does not directly prohibit or restrict an act nor does it directly impose a duty. But in my view it does indirectly prohibit or restrict an act and also indirectly imposes a duty. A person is empowered to do an act under a valid law is restricted or prohibited indirectly by s 41 from acting harshly or oppressively etc."

Kapi DCJ expressed it differently at 336:

"The whole thrust of the provision (s 41) is directed at those actions... any person aggrieved by acts which are prohibited by s 41(a),(b) or (c) may seek judicial remedy in terms of the provision. That is to say, he has a cause or right of action upon which he may make an application to a court ... Such a cause of action arises or is constituted at the time these actions are taken."

Amet J, as he then was, favoured a more limited role for s 41.

I agree with the views expressed by Kapi DCJ, for the section envisages a right in the Court to enquire into the circumstances surrounding the "act sought to be impugned". But somebody must be, as the Deputy Chief Justice says, "aggrieved", and the effect of the "act", in the terms of the section, must be "harsh or oppressive" etc.

In SCR No 1 of 1984; Re Minimum Penalties Legislation [1984] PNGLR 314, the rights envisaged under s 41 were again considered by the Supreme Court. Kidu CJ, Kapi DCJ, and Kaputin J favoured a wide interpretation, whilst Bredmeyer J and McDermott AJ constrained such rights.

In Premdas, Prentice CJ, when speaking of s 41, said at p 344:

"I consider that, giving s 41 a fair and liberal meaning as the court is instructed to do by Schedule 1.5(2) of the Constitution, it should be regarded as of general application. The criteria put forward in the section are clearly questions of fact. Both counsel concur in the submission that in assessing the quality of the relevant facts, the test should be an objective one. I feel that the test should be to question whether the Minister and the Committee acted as reasonable men in the circumstances, having regard to the policy of the act on the one hand and the various provisions of the Constitution on the other."

This view is consonant with those of Kidu CJ, Kapi DCJ, and Kaputin J in SCR No 1 of 1984, and I consider Prentice CJ has correctly expressed the principle that s 41 may be called in support where any executive or administrative act done pursuant to legislation or regulation, otherwise lawful, is sought to be impugned.

McDermott AJ had reason to consider the effect of an application pursuant to s 41 in Raz v Matane [1986] PNGLR 38. He was the judge who sat on the application of Mr Raz for redress pursuant to s 41 following the Supreme Court ruling. He said at 48:

"I have already referred to the basis on which this matter arises, that is, that acts of the Minister and Committee of Review in the exercise of powers under the Migration Act are subject to the Constitution s 41. It appears to me that Mr Narokobi may not fully appreciate the import of that decision. The National Court now has jurisdiction to entertain a cause of action based on that section to investigate and determine if acts otherwise lawful become unlawful or invalid because they are harsh, oppressive, not warranted by or disproportionate to requirements or not reasonably justifiable in a democratic society in the particular circumstances. These are matters for objective assessment on the evidence available and that is the basis on which I will examine the plaintiff's claims."

I should say right away that I disagree with McDermott AJ's basis of jurisdiction to embark on the enquiry, for the Court's power in the first instance can only be s 41. This is clear from the earlier Supreme Court decision in Premdas. There, Prentice CJ, having found that the particular section of the Migration Act under question was constitutional, went on to say at p 338: "but [that finding] cannot prevent the jurisdiction of the National and Supreme Courts being invoked in support of alleged Constitutional Rights and against alleged breaches of the Constitution".

Section 51 of the repealed Migration Act, 1978 (in similar terms to s 19 of the Migration Act Ch 16 considered here) precludes a review or challenge by way of writ of certiorari, etc. That prohibition, the Supreme Court found, is not unconstitutional. In the instant case, no breaches of constitutional rights, per se, are alleged by Mr Curran. He says the "acts" of the Minister, lawfully enabled, are "harsh and oppressive" in the circumstances of his case, and, consequently, are unlawful. In Raz v Matane, McDermott AJ was not faced with any alleged breaches of constitutional rights. Rather, Mr Raz relied on s 41 for his remedy. The jurisdiction of this Court to consider the lawfulness or otherwise of the act or acts of the Minister and Committee of Review cancelling Mr Curran's visa is found in s 166(1) of the Constitution. It provides that the National Court has unlimited jurisdiction and, consequently, can embark on that enquiry envisaged by s 41 of the Constitution, "a constitutional right" of enquiry envisaged by Prentice CJ in Premdas' case and Kapi DCJ in Raz's case.

The powers of this Court to correct "proscribed acts" may be found in s 23(2) or s 155(4) of the Constitution (see Raz's case). It must be kept clearly in mind that s 41 attacks acts otherwise lawful. McDermott AJ's enquiry into the Minister's method or manner of dealing with Mr Raz misapprehends the Court's power. The Court, when faced with an assertion based on s 41, cannot sweep away, as it were, the injunction found in s 19 of the Migration Act and treat the case as one for certiorari. Section 41 of the Constitution envisages an entirely different inquiry, which only indirectly touches on the Minister's methodology. Section 41 does not concern itself with procedural fairness, but with a resultant effect. It says that, even where the Minister has power, if the effect is "harsh and oppressive", then the act is unlawful.

This enquiry can be equated with the Court's power to void certain onerous contracts or arrangements under s 88F of the Industrial Arbitration Act, 1940-1967 of New South Wales.

Section 88F (since repealed) provided:

N2>"88F(1)         The commission may make an order or award declaring void in whole or in part or varying in whole or in part and either ab initio or from some other time any contract or arrangement or any condition or collateral arrangement relating thereto whereby a person performs work in any industry on the grounds that the contract or arrangement or any condition or collateral arrangement relating thereto:

(a)      is unfair, or

(b)      is harsh or unconscionable, or

(c)      is against the public interest ..."

It can be seen, then, that the court in New South Wales could set aside an agreement, otherwise binding, where it is of the view, on balance, that it is unfair, harsh or unconscionable, or against the public interest. I touch on this foreign provision as illustrative of, not so much a cause of action, but a right of enquiry in the statute, in so far as work arrangements are concerned. In Papua New Guinea, the constitutional enquiry envisaged by s 41 is not limited by subject matter. It may be related to acts done pursuant to any legislation.

HISTORY OF MR CURRAN'S INVOLVEMENT WITH MR LEBLANC

I propose to deal now with the material before the Minister, the relevant correspondence, and make findings of fact. Mr Curran became, it seems, inextricably linked with his client, Mr LeBlanc. How that came about is deposed to in Mr Curran's letter dated 25 June 1992, addressed to the Rt Honourable Sir Michael Somare, Minister for Foreign Affairs, in which Mr Curran sought, pursuant to s 6(2) of the Migration Act, a review of the cancellation of his entry permit. That letter was of four pages. It gave the Minister a personal resume; a history of his involvement with Mr LeBlanc in a professional sense; his perception of his duties as a lawyer in such circumstances; matters which go to his previous good character and conduct; Mr Curran's personal concerns were the cancellation to be upheld by the Committee of Review; the probable effect of such cancellation; his assertion that it was unfair (for the Minister's order happened without any approach by departmental officers seeking either an explanation of his conduct or seeking an interview with him). It concluded with a call to view his professional integrity as supportive of the Constitution of the country, finally pleading the unlawfulness of the Minister's act of cancellation in terms of s 41 of that Constitution.

In part, Mr Curran said:

"I assume that your decision to cancel my entry is as a result of my appearing on behalf of Mr Arthur LeBlanc who was the subject of proceedings before the National Court concerning the cancellation of his entry permit and his removal from Papua New Guinea. If this is not correct please advise me so that I may make further submissions to the Committee.

I draw to the Committee's attention that I received instructions to act on behalf of Mr LeBlanc from Mr Rimbink Pato the principal of Steeles lawyers. Mr Pato sought my assistance and I acted as counsel for Mr LeBlanc on instructions from Steeles.

On the morning of Sunday 21 June 1992 I was contacted by Mr Bill McCulla of the United States Embassy. He informed me that Mr LeBlanc had been conveyed by officers of the Department of Foreign Affairs and Police to Jacksons Airport and it was intended that he be removed from Papua New Guinea. As I held certain instructions from Mr LeBlanc to provide legal assistance I indicated to Mr McCulla that I would take appropriate steps to safeguard Mr LeBlanc's position. Previously Mr LeBlanc had informed me that he been issued with a number of entry permits during the period of his residence in Papua New Guinea. Mr LeBlanc delivered his Passport to me on 17 June 1992 so that I could inspect his passport and review the entry permits which had been granted to him for the purpose of providing legal advice to him. His Passport had not been collected by Mr LeBlanc prior to his being detained by officers of the Department of Foreign Affairs.

On 21 June 1992, acting in accordance with my instructions from Mr LeBlanc, I made an urgent ex parte application before Mr Justice Brown on his behalf to restrain officers of the Department of Foreign Affairs from removing Mr LeBlanc from Papua New Guinea pending the National Court making an order for directions as to the filing and service of an application for judicial review of the decision of the Committee of Review appointed by the Prime Minister pursuant to Section 6(3) of the Act. At the time of attending upon Mr Justice Brown I suggested to His Honour that it was appropriate that Mr LeBlanc's Passport be surrendered to His Honour to be kept with the Court papers. His Honour indicated to me that he did not consider it appropriate for the Court to hold the Passport at that time. I therefore retained the Passport in my possession. I draw to the Committee's attention that at no time until the afternoon of 23 June 1992 did any officer of the Department of Foreign Affairs request that I deliver to them Mr LeBlanc's Passport. Mr LeBlanc's Passport was delivered to an officer of the Department of Foreign Affairs on the afternoon of 23 June 1992 pursuant to an order of the Court, which was not opposed by me on Mr LeBlanc's behalf.

I draw to the Committee's attention that at all times in my dealings with both Mr LeBlanc and the Department of Foreign Affairs I have conducted myself properly as a lawyer. There has been no allegation made against me of misconduct as a lawyer. I have not breached any professional conduct rules nor have I breached any laws. I draw to the Committee's attention that Rule 15(1) of the Professional Conduct Rules made pursuant to the Lawyers Act provides in part as follows:

'A lawyer shall conduct each case in such a manner as he considers will be most advantageous to his client.'

I enclose a copy of a letter to the Minister for Foreign Affairs by the President of the Papua New Guinea Law Society dated 24 June 1992."

It can be seen that he has brought in issue his duties as a lawyer, and asserted that he has not breached any professional conduct rules.

On Thursday 18 June 1992, the Post-Courier newspaper, on p 3, published an article by Frank Kolma, a journalist, with a photograph of Mr LeBlanc, standing hand on hips, in a somewhat confrontationist attitude, underlined by "Arthur LeBlanc, outside the Post-Courier office at Konedobu ... 'I want my wife to be afforded the same rights as everybody else in this country'". The article said in part:

"American Arthur LeBlanc turned up at the Post-Courier office in Port Moresby yesterday to deny Foreign Affairs Minister Michael Somare's claims that he had gone into hiding to avoid deportation.

Mr LeBlanc denied also that there was a court order to wind up his business and leave the country. 'No court in this country has given me any order to wind up LeBlanc Real Estate,' he said . 'I have no business to wind up. It belongs to my wife (Jelma LeBlanc). She's from Central Province where Sir Michael alleges I am hiding.'

Sir Michael alleged on Wednesday that Mr LeBlanc had:

.           Breached the Migration Act numerous times;

.           Overstayed his temporary visa;

.           Gone into hiding in his wife's province; and

.           Breached a court ruling in May to wind up his company and go.

After Foreign Affairs refused to grant Mr LeBlanc an entry visa while on a trip to Singapore last year, he took out a court action resulting in his being granted a temporary visa until October this year. On May 23, he was served with a Removal Order by Foreign Affairs. He appealed the order on the grounds that the temporary visa had not expired and that he was still lawfully in the country. The appeal procedure requires the Prime Minister to set up a ministerial committee to which the Minister and appellant (in this case Mr LeBlanc) present their case.

Yesterday, after hearing that Mr LeBlanc had called at the Post-Courier, Sir Michael's office released another statement saying that the three-member ministerial appeal committee had upheld Sir Michael's decision to deport him.

'The Committee upheld my decision to deport him upon finding that there was no genuine grounds for LeBlanc to stay in PNG,' Sir Michael said in the statement. 'This is the end of the saga. As far as I am concerned the man is persona-non-gratia and has to leave PNG or he will be removed.'

Sir Michael said Mr LeBlanc had not been granted any right to remain in the country and that he (LeBlanc) had misled the Department of Foreign Affairs when he said that he had made a Supreme Court appeal relating to a previous National Court ruling.

Mr Brian Curran, a lawyer with Blake Dawson Waldron who is representing Mr LeBlanc, said yesterday: 'Mr LeBlanc has never been charged with or convicted of any criminal offence in this country. He is not a threat to society. You can make the (removal) order if the man is in the country unlawfully. The man is here in the country legally and lawfully.' "

I consider it important that the circumstances leading up to the deportation of Mr Arthur LeBlanc be particularised, for the Foreign Minister, Sir Michael Somare, has been incensed by Mr Curran's actions on Mr LeBlanc's behalf as "constituting a contempt of the Government." Whilst that phrase was used by the Committee of Review in its reasons, given by the Secretary for Foreign Affairs on 17 July 1992, for upholding the Foreign Minister's decision deporting Mr Curran, I am satisfied, when I consider all the circumstances surrounding Mr LeBlanc's removal, that Sir Michael Somare has acted because of the nature of Mr Curran's involvement. The Committee's expression is but a reflection of the Minister's findings in so far as Mr Curran's actions are concerned. Mr Damem said, in his address to the Court, that he considered the phrase used by the Secretary for Foreign Affairs referred to the actions of Mr Curran in holding onto Mr LeBlanc's passport.

I propose then to deal in some detail with the circumstances which led up to the deportation of Mr LeBlanc following Sakora J's hearing dealing with my orders of the Sunday, 21 June 1992, which resulted in Mr LeBlanc being brought to Court on the Monday, so that the Court could enquire into the lawfulness or otherwise of his continued detention. Sakora J found that Mr LeBlanc's arrest was lawful and flowed from a detention order of the Minister for Foreign Affairs, Sir Michael Somare, of 3 June 1992, flowing from a removal order. That removal order of 22 May 1992 was made by Sir Michael by virtue of his powers conferred by s 12 of the Migration Act. He ordered the removal from the country (within seven days of the date of service of the order) of Mr LeBlanc, whose continued presence in the country was declared unlawful by the Minister.

It is necessary to go back in time some little way to show the events which led up to the deportation of Mr LeBlanc and, consequently, the deportation of Mr Curran. Mr Kolma's article in the Post-Courier touched on the fact that Mr LeBlanc had been granted a temporary visa following his absence from Papua New Guinea on a trip to Singapore. This trip was necessitated by the Department's requirement that aliens apply for fresh visas while out of the country when their employment changes, for the terms under which visas are originally granted include an employment condition, effective whilst the employment continues. In Mr LeBlanc's case, he had changed jobs. The Department, reasonably in my view, sees that change of circumstance as a breach of the original visa approval condition, thus negating the original visa approval.

Whilst he was overseas, his application for a re-entry visa to Papua New Guinea was refused by the Department of Foreign Affairs. On 9 December 1991, Hinchliffe J made an order directing the Immigration Division to issue him with a temporary entry visa. In my view, the Court cannot stand in the place of the decision maker and order the issue of a visa. There is no power in the Act whatsoever for that course. In any event, His Honour said in the ultimate paragraph of his written reasons for decision, given later:

"I, therefore, propose to extend the temporary entry permit that is now in existence so the plaintiff will have time to consult his lawyer and to decide any further steps, whether it be through the Court or to the Minister. I order that the temporary entry permit relating to the plaintiff be extended to the 30 April 1992."

His Honour said in his reasons that Mr LeBlanc was presently in the country on a temporary visa, which he had ordered issued on the 9 December 1991. The Court had then ordered that Mr LeBlanc be granted leave to make application for judicial review and, further, that Mr LeBlanc be issued with a temporary entry visa pursuant to s 4 of the Migration Act for 60 days from that date. In his reasons for decision of 24 February, the day before the expiration of the temporary visa, His Honour said:

"For the record, I also note that my first order relating to the temporary visa was not obeyed by the Department of Foreign Affairs, and it was only after some fairly heated discussion and talk of contempt of court that the temporary visa was finally issued. I would have thought that it was trite law that a Court order must be obeyed until, at least, it is altered in some way by a further Court order."

With respect to Hinchliffe J, to talk of contempt proceedings when his power to order the issue of a visa to a foreigner outside the country at the time of application, a foreigner who had been told that he would not be considered for re-entry, was, the very least, doubtful. And it may go some way towards explaining the Minister's rather pre-emptory attitude towards Mr Curran.

In any event, Hinchliffe J refused the application for judicial review of the Director-General, Immigration and Citizenship Division of the Department of Foreign Affairs' refusal to issue an entry permit to Mr LeBlanc to enable him to enter the country from Singapore. His Honour did, however, extend his temporary entry permit, to the 30 April 1992. It must be remembered that both the temporary entry permit ordered by Hinchliffe J and the extension by that Judge are, to my mind, beyond the power of this Court, but the orders were never the subject of an appeal by the State Solicitor.

It is a clear principle that it is the right of every independent state to control its migration, its emigrants or visitors at point of entry. That right is delegated in accordance with powers enumerated in the Migration Act, but nowhere has the Court executive power to grant or order visas. It may possibly review, but it cannot grant or direct the issue of a visa. I say that with the greatest respect, but consider the convoluted events which followed are due in some part to the fact of these order and the actions of the Minister in ordering the cancellation of Mr Curran's visa no doubt flow from the circumstances in which the Director-General felt obliged by Court order to grant Mr LeBlanc a temporary entry visa and the frustration that he experienced as a result.

The next link in this chain of events was that on 27 April 1992 Mr LeBlanc, by originating summons, sought an order that he be granted leave for judicial review of the division's refusal to issue an entry permit to him. He also sought a further order extending the temporary visa issued at the Court's direction. On 29 April, that application and motion came before the Court, and Sakora AJ refused the application for leave to apply for judicial review. He also refused the oral application to amend the originating summons. The application of 27 April was, to all intents and purposes, in fact the same application which came before Hinchliffe J on 6 and 24 February, when he refused to grant any order or declaration as sought by the plaintiff in respect of the Director-General's refusal to issue an entry permit.

On 22 May 1992, the Minister for Foreign Affairs did, by notice, "hereby cancel the entry permit issued to you". That notice failed to particularise the permit issued. By letter of 26 May, Mr LeBlanc wrote to the Minister for Foreign Affairs asking that a Committee of Review, pursuant to s 6(2) of the Migration Act, be appointed, for he was obviously aggrieved by the purported cancellation of his entry permit. It may well be that the Minister's order of 22 May was directed towards that earlier entry permit granted on 18 October 1989 for a period to the 10 October 1992. I say that for yet a third originating summons (OS 112/92), filed on 4 May 1992 in this Court, sought a declaration that Mr LeBlanc had, at all material times, a valid entry permit pursuant to the Migration Act, which visa was expressed to expire on 10 October 1992. Mr LeBlanc also sought orders declaring null and void the purported cancellation of his entry permit by the Director-General of Immigration by letter dated 15 October 1991 and further declarations that any actions or decisions taken by officers of the department or the State on the strength of that letter of the Director-General be declared null, void, and of no effect. Mr LeBlanc also sought an interim injunction restraining the Minister from removing him from Papua New Guinea pending determination of those proceedings. That summons came before Salika J on 15 May 1992. It was these proceedings which first saw the appearance of Mr Curran on Mr LeBlanc's behalf.

Mr Curran, briefed by Steeles Lawyers for the applicant, appeared for Mr LeBlanc, and Mr Damem appeared for the Minister and the State. There is a draft order on file, which appears to have been entered on 29 May 1992. That order is in the following form:

"The Court orders:

1.       Upon the defendant's undertaking to comply with the provisions of the Migration Act Ch No 16 in respect of the plaintiff's entitlement to remain in the jurisdiction of Papua New Guinea.

2.       Upon the plaintiff's undertaking to discontinue these proceedings within 14 days, this application is to be withdrawn.

3.       Each party have liberty to apply in respect of costs upon 5 days notice.

Ordered the 15 day of May 1992 and entered the 29 day of May 1992."

The draft order has the seal of the Court and has the Registrar's signature. It is clearly not formulated as an order but rather recites undertakings. No application to withdraw the proceedings appears to have been filed.

I must say that I cannot make much sense of the terms of the "draft orders". So far as the first order is concerned, whilst couched in the form of an undertaking, it is difficult to understand in the light of the history of these various proceedings and, consequently, could be said to be meaningless, except that it may explain the Minister's apparently unrelated act of 22 May, purporting to cancel Mr LeBlanc's visa. The second undertaking is clearer. No application to withdraw the proceedings has been filed subsequently, although by letter of 26 May, Mr LeBlanc sought the appointment of a Committee of Review after the Minister's order of 22 May purporting to cancel his entry visa. It seems to me the only logical conclusion that one can make of this is that Minister's order of the 22 May arose out of a mistaken view that the applicant in proceedings OS 112/92 had some "entitlement to remain in the jurisdiction of PNG", and is directed towards the cancellation of the entry visa which was stated to expire on 10 October 1992. Curiously, that entry visa has a line through it, and the line is dated 16 October 1991. It appears to be a cancellation of the visa originally granted on 18 October 1989, for it has the stamp of the Immigration Division and the signature of an officer, presumably authorised for that purpose. The explanation for the line cancelling the visa is found in the letter of Director-General Sebulon Kulu, Immigration and Citizenship Division, dated 15 October 1991, addressed to Mr Henry Aitsi, the manager K. Reu Investments Pty Ltd. The Director-General says in relation to "the application for change of multiple entry permits in favour of John M. Mingo and Arthur LeBlanc, that the applications have been rejected." The Director-General goes on to say that the Migration Act does not allow the change of entry permits for foreigners changing jobs without exiting the country. He says that under the Act, when changes of employment occur, the person changing job is required to leave the country. Whilst overseas, fresh applications for employment with the new employer can be lodged for consideration. The Director-General further states that, "as it is against the Migration Act to change entry permits of the above named persons, no approval will be given. Messrs John M. Mingo and Arthur LeBlanc will have to leave the country and make fresh applications overseas for employment with their new employer, LeBlanc Real Estate Pty Ltd. Therefore it is directed that Messrs Mingo and LeBlanc leave the country within 7 days as of the date of receipt of this letter".

In his affidavit in support of his most recent originating summons of 4 May 1992, Mr LeBlanc says that at no time had he been served with a written notice under the hand of the Minister for Foreign Affairs cancelling his entry visa, which was issued on the 18 October 1989, as is required by s 6(1) of the Migration Act. He goes on to say that, "In the mistaken belief that my entry visa had been validly cancelled, I left Papua New Guinea on the 16 October 1991."

When Mr LeBlanc was refused a temporary entry visa on 15 November 1991 on his return by air to Port Moresby, he was forced to depart Papua New Guinea on that same day on a flight to Hong Kong. The application for judicial review of the decision of the Immigration Division refusing to grant his entry visa pursuant to s 4 of the Migration Act was filed on 27 November, and Justice Hinchliffe dealt with that application on 9 December. It is abundantly clear from the terms of the Judge's reasons for his decision, given on 24 February 1992, that the judge considered the circumstances of the cancellation of the entry visa expressed to expire on 10 October 1992. The Judge found, as I have said, the need to order a temporary visa. That visa was issued by order of the Court. It was due to expire 60 days from 9 December 1991. The earlier visa had been cancelled by the act of striking through it on Mr LeBlanc's departure from the country on 16 October 1991.

In his affidavit in support of his most recent application for a declaration, Mr LeBlanc says that Hinchliffe J had not addressed the issue of the failure of the Minister for Foreign Affairs to cancel his entry visa granted on the 18 October 1989. He says that the effect of the provisions of the Migration Act viz-a-viz his entry visa had not, in Hinchliffe J's proceedings, been raised or addressed. As a consequence, Mr LeBlanc said that he intended to stay in Papua New Guinea with his wife and children.

Following, as it did, the originating summons of 4 May 1992, it is reasonable to suppose that the Minister's order of 22 May 1992 cancelling "the entry visa" must relate to that earlier visa granted on 18 October 1989, even though, on its face, it was cancelled on 16 October 1991. Clearly, the entry permit issued on 18 October 1989 was issued subject to conditions which had been breached. On Mr LeBlanc's own deposition, he had taken up employment with LeBlanc Real Estate Pty Ltd and was no longer employed by Wagai Pty Ltd, his original employer. The letter of the Director-General of 15 October 1991 makes that abundantly clear. Had Mr LeBlanc not left the country as requested by the Director-General, then no doubt the Minister would have taken steps to cancel his entry permit in accordance with s 6 of the Migration Act. In any event, Mr LeBlanc did leave the country on 16 October, when his entry permit was scored through. He clearly has complied with the directions of the Director-General of Immigration and Citizenship, contained in his letter of 15 October, and on his exit from the country his entry visa was cancelled. The legality of that cancellation was before Hinchliffe J. It was, in my opinion, within the powers of the Director-General to cancel the entry permit of a departing foreigner where the conditions under which his permit had originally been granted no longer applied. It was an administrative act and did not require the Minister's consideration under s 6 of the Migration Act, as asserted by Mr LeBlanc. The maxim omnia praesumuntur rite esse acta applies, and the cancellation of the visa by the officer on 16 October 1991 must be presumed to be valid. I say that obiter for that is not an issue in these proceedings. However, Hinchliffe J impliedly adopted this same reasoning when he found it necessary to order the issue of a temporary entry visa in favour of Mr LeBlanc on 9 December 1991.

On the facts before Hinchliffe J, and having regard to his reasons for the decision of 24 February 1992, that part of Mr Le Blanc's affidavit filed in support of his application of 4 May 1992 which says, "In the mistaken belief that my entry visa had been validly cancelled, I left Papua New Guinea on the 16 October 1991", is clearly objectionable. The earlier entry visa had, on its face, been validly cancelled. The reason for Mr LeBlanc's departure is directly attributable to the Director-General's letter of 15 October 1991, addressing Mr Le Blanc's application for change of multiple entry permits, in which the Director-General refused to approve the proposed change to Mr LeBlanc's entry visa and directed that he leave the country. On his departure on 16 October 1991, Mr Le Blanc's visa was cancelled.

It is a question of law whether or not the earlier visa was validly cancelled on 16 October 1991, but it is a fact that it was. The question was addressed by Hinchliffe J, who found cause to direct the issue of a temporary visa. The affidavit was filed but presumably not read, however, in the originating summons proceedings of 4 May 1992, for consent orders were made by Salika J on 15 May, orders which I have already recounted. These proceedings of 4 May, however, were those in which Mr Curran appeared, and he must, at least by 15 May, have been fully appraised of all the various applications by Mr LeBlanc and have had the reasons given by Hinchliffe J for that judge's refusal to review the Director-General's failure to issue a visa for Mr LeBlanc in the first instance, back in October and November 1991. In other words, he was conversant with the various visas endorsed in Mr LeBlanc's passport. Whether the objectionable affidavit of Mr LeBlanc, sworn on 4 May 1992, was actually drawn by Mr Curran is not clear, but he must be presumed to have knowledge of its contents and acquiesced in its remaining on file. The latter part of that affidavit said:

N2>"11.    Having reviewed the judgment of Mr Justice Hinchliffe dated 24 February, 1992, a copy of which is annexed etc, it appears that the issue of the failure of the Minister to cancel my entry visa granted on 18 October, 1989, in accordance with the provisions of the Migration Act, has never been raised or addressed.

N2>12.     As my entry visa has never been cancelled I intend to stay in Papua New Guinea with my wife and children all of whom are national citizens.

N2>13.     In the event that the defendants can produce the letter under the hand of the Minister, together with the details of service, cancelling my entry visa in accordance with s 6(1) of the Migration Act I am prepared to immediately discontinue these proceedings."

The factual assertions in para 12 are wrong and misleading.

A lawyer's obligation is to deal frankly and truthfully in regard to the preparation and filing of affidavits. It would seem that Mr LeBlanc's assertion in para 13 may have precipitated the Minister's act in purporting to cancel Mr Le Blanc's visa and making yet another order for deportation on 22 May.

An affidavit should depose to facts for the Court's benefit. Para 11 is an assertion of mixed fact and law. So far as it presumes an exclusive power in the Minister to cancel the entry permit, on the facts of Mr Le Blanc's case, it is wrong for the reasons that I have given.

It is, consequently, an untrue denial to assert that Hinchliffe J did not address the issue of the Minister's failure. That was never an issue. To set conditions on the basis of these erroneous assertions, as Mr LeBlanc did in his ultimate paragraph, is a bluff with dire consequences if called. Mr LeBlanc was subsequently deported and Mr Curran, the advocate, must be held responsible for the affidavits used in court proceedings, proceedings which culminated in those undertakings which may be related to the tenor of Mr Le Blanc's deposition. The lawyer's use of the affidavit is open to the gravest censure, for the evidence casts aspersions on the Minister, suggesting that there was no such letter (when there never was a need for such), aspersions without basis.

The culmination of these proceedings involving Mr LeBlanc occurred when Sakora J heard the application for a writ of habeas corpus to bring Mr LeBlanc before the Court and quash the order of the Minister deporting him. As I have said, Sakora J found that the detention of Mr LeBlanc was lawful and confirmed the Minister's order removing him from the country, refusing the writ.

There can be no doubt that Mr Curran was appraised of all these facts when he argued his application for declarations before Salika J on 15 May 1992, an application which pre-dated the Minister's subsequent orders cancelling the visa on 22 May 1992. I consider that knowledge in Mr Curran of these facts is particularly relevant, for it goes to an understanding of the Minister's justification for taking the steps that he did to cancel Mr Curran's visa. Mr Curran was clearly in error if he was correctly reported by the journalist Mr Frank Kolma as saying, "You can make the (removal) order if the man is in the country unlawfully. The man is here in the country legally and lawfully."

Mr Curran's statement is incorrect, for the temporary entry visa ordered by Hinchliffe J expired on 30 April 1992. There was no valid entry visa in favour of Mr LeBlanc at the time of the report. The entry visa expressed to expire on 22 October 1992 had been cancelled on 16 October 1991, when Mr LeBlanc left the country. The most that Mr LeBlanc could say about that entry visa was that he had filed an application for declarations to the effect that the cancellation on 16 October 1991 was void and of no effect. In fact, those proceedings for declarations were, by the order of 15 May, to be withdrawn. The statement of Mr Curran that Mr LeBlanc was "here in the country legally and lawfully" is contrary to the status of Mr LeBlanc in the country at the time of the report in the Post-Courier of 18 June. If there was ever any doubt about the effectiveness of Mr LeBlanc's entry visa, expressed to expire on 22 October 1992, that doubt was removed by the Minister's order of 22 May 1992 cancelling such visa and his subsequent order deporting Mr LeBlanc. As the Minister was reported to have said in the Post-Courier of 18 June, the Ministerial Committee of Review had upheld Sir Michael Somare's decision to deport Mr LeBlanc.

The justification for the Minister's act against Mr Curran clearly also goes to the factual statements quoted of Mr Curran, factual statements which were not true. The Minister's decision to deport is not circumscribed by the necessity to rely on a Court order finding, for instance, that continued presence is unlawful. The right to remain is in the Minister's discretion, a discretion which the executive reasonably expects will be exercised on fair and proper principles. Those erroneous factual statements could be said to show little respect for the Minister's office or for the commonwealth.

As at 18 June, Mr LeBlanc was in the country unlawfully, and had been since his temporary visa had expired on 30 April 1992. The article incorrectly reported that Mr LeBlanc had a temporary visa "until October" 1992. That may have been Mr Le Blanc's wish, but in his own affidavit, he acknowledged that his earlier visa had been cancelled. Hence his application of 15 May. The Minister's act in purporting to cancel Mr LeBlanc's visa on 22 May 1992 can be seen as an attempt to put beyond doubt any suggestion that Mr LeBlanc had any right to remain pursuant to that earlier visa, which had been cancelled on 16 October 1991. Mr LeBlanc then seized upon the Minister's order as affording him another opportunity to have his application to remain in the country considered afresh, and he sought a review by the Committee of Review of the Minister's order, a review which gave him no consolation, for it upheld the Minister's decision to deport. He had then exhausted his administrative remedies.

Before going to a consideration of the issues in these proceedings, I would like to deal with the criticism that I made of the reasons for the decision given by Hinchliffe J, wherein he presupposes a power in the Courts to order the Department of Foreign Affairs to issue a temporary entry visa. There is no such power expressed in the Migration Act. To imply a power in these circumstances must be to pre-empt the powers of the authorised authority. Nowhere in the Act is that permitted. Nowhere is there a provision in the Migration Act giving a Court power to allow the entry of an alien and give him permission to stay in Papua New Guinea.

English Courts also recognise an exclusive power in the appropriate authority (see R v Brixton Prison Governor; Ex parte Havilde [1969] 1 All ER 109). In that case, the applicant, then detained in Brixton Prison, sought by writ of habeas corpus, directed to the governor of the prison, to have himself brought before the Court, and to have quashed a deportation order made by the Secretary of State for Home Affairs.

The short facts were that he landed in England on 19 November 1967, on condition that he stayed no more than three months. He did not comply with that condition, for seven months later, on 10 June, 1968, he was still there. He was then arrested for a breach of that condition. He was kept in custody, and he was tried at the Central Criminal Court. He pleaded guilty on 13 September 1968, and he was made the subject of a suspended sentence, a sentence of three months, suspended for 12 months. The sentencing commissioner in the court, having imposed the suspended sentence, went on to bind the applicant over in his own recognisance to leave the country within two months, unless he had a variation of the original condition from the Home Office that he was eligible to only stay for three months from 19 November 1967, enabling him to stay. But on 22 October in that year, a deportation order was made by the Secretary of State for Home Affairs.

It was argued that, in those circumstances, while the order of the commissioner could not override the executive act of the Home Secretary in making the deportation order, in that the Home Secretary might have good reason for saying that it was not conducive to the public good that the applicant should remain, yet the one thing the Home Secretary cannot do is to make a deportation order merely on the basis that the condition has not been complied with, because that has been dealt with at the Central Criminal Court.

Lord Parker CJ said at 110:

"The issue, as I see it, and the sole issue in this case is whether the learned commissioner had power to bind over the applicant as he did. In order to determine that matter it is necessary to look at art. 25 and art. 26 of the Aliens Order 1953."

At 111, he said:

"What counsel for the applicant says is that that article gave the learned commissioner power to say, as he did: 'I bind you over to leave this country within a certain period', whether it be 24 hours or two months as in the present case, or indeed 12 months or any period. He refers back to art. 25(1) where the breach of a condition is specifically made an offence. He says accordingly that the learned commissioner was entitled to make the order that he did. Attractive as that argument may appear at first sight, I am quite satisfied that it is wrong. On analysis, the power to bind over is limited to a binding over to comply with such provisions of the order as the court may direct. One at once asks oneself: is there a provision of the order that a man must leave when the period imposed by the condition has expired? The answer is that there is no provision in the order to that effect, and indeed if one analyses it, it would mean, if counsel is right, two things: first, that the court was being given power to vary a condition, which would be a very surprising thing; and secondly, and perhaps more important, it was being given power to fetter the discretion of the Secretary of State, in whom alone is vested the power by way of executive act to decide whether or not it is conducive to the public good that an alien should remain in this country".

Lord Parker goes on to say:

"I should add one further matter, that counsel for applicant in the alternative said that there was a general power in the court, quite apart from art. 26, to lay down conditions. The way he puts it, as I understand it, is that although art. 26 is dealing with fines and imprisonment, there is nothing whatever to prevent a court from giving a conditional discharge or a probation order, making it a condition of that order that the alien should leave the country within a certain period. For my part, whatever conditions the court can impose in that way, they cannot be such as to exclude the absolute discretion of the Secretary of State to make a deportation order. For those reasons, although this has really been dealt with as an ex parte application, I am quite satisfied that there is nothing in it, and I would accordingly refuse leave."

The English case clearly categorises the absolute discretion of the Home Secretary to make certain orders and the absence of a power in the Court to make orders which could exclude that absolute discretion. It is clear on a reading of ss 4 and 5 of the Migration Act that the Court has no power to either issue or direct conditions of entry of a person seeking such an entry permit and that by s 19 "no act, proposed act, or decision of the Minister relating to the grant or revocation of an entry permit is open to challenge in any Court". The Minister's, or delegate's, refusal to grant Mr LeBlanc a further visa, following his departure on 16 October 1991 cannot be the subject of review resulting in an order directing the Minister to issue such visa.

I want now to go back to the test which McDermott AJ propounded in the case of Raz v Matane. His Honour relied on the reasoning in the Attorney General of Hong Kong v Shiu [1983] 2 AC 629 as affording him justification for approaching the review of the Minister's act in cancelling entry visas in these circumstances on the same basis as the review of an administrative act. He then falls back upon the authority of Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223 at 230 as expounding a principle which he then applies in the circumstances of Raz v Matane. In my view, there is no licence for the Court to apply the Wednesbury principles in a review of the Minister's executive act under the Migration Act. The Act itself precludes such investigation (see s 19). The Supreme Court in Premdas' case has recognised the unfettered executive nature of the Minister's discretion afforded him by the Migration Act, and the Supreme Court has further affirmed that an alien in these circumstances has no automatic right to be heard, a characteristic of the Wednesbury principles. Shiu's case involved consideration of "legitimate expectation" by the Privy Council in the context of an illegal immigrant who expected to remain after the government had made an announcement inviting such immigrants to apply for residency. The facts of that case bear no relation to the facts of this case, nor our Minister's statutory powers given him by the Migration Act s 6 to cancel entry permits.

Whilst McDermott's approach in Raz v Matane is not binding on this Court, I consider it instructive to consider the line of cases which he touched on. In Shiu's case, a number of other English cases were referred to which dealt with the meaning of "legitimate expectations". Those cases, with their peculiar facts, illustrate the approach of the English Court of Appeal and House of Lords to the legal conclusion to be drawn. The legitimate expectation (of permission to remain) in Shiu's case, accordingly, afforded the Court a right to challenge the decision makers' discretion where, on a finding of fact, such expectations may go beyond enforceable legal rights, provided they have reasonable basis of fact. In Mr LeBlanc's case, there could be no legitimate expectation, for he was expressly told that his application for re-entry would be refused.

In this present case, I am satisfied there can arise no "legitimate expectation" on the facts. I consider that, in law, such an approach in migration affairs of this nature has no place when considering the Minister's power found in the Migration Act s 6, which neither categorises matters relevant for the Minister's consideration, nor expressly or impliedly fetters his power.

Contemporary English decisions illustrate the immunity from judicial review of immigration decisions where there is a statutory right of appeal, unless there are exceptional circumstances. In R v Secretary of State for the Home Department; Ex parte Swati [1986] 1 All ER 717, the Court of Appeal had occasion to consider the Divisional Court's refusal of leave for judicial review where an applicant had been refused a visitor's visa to enter the United Kingdom. The facts were that an immigration officer had refused the applicant leave to enter the United Kingdom as a visitor for one week, stating, "I am not satisfied that you are genuinely seeking entry only for this limited period". Under reg 4(1)(a) of the Immigration Appeals (Notices) Regulations, 1984, written notice of any decision was required to "include a statement of a reasons for decision". The applicant sought judicial review of the immigration officer's decision on the grounds that her statement was not a sufficient reason for the purposes of reg 4(1)(a) and that the decision itself was irrational. He did not seek to pursue his remedies of appeal to an adjudicator and the Immigration Appeal Tribunal under s 13 of the Immigration Act, 1971, since that required him first to leave the United Kingdom. Pending his application for judicial review, he was detained at a remand centre under para 16(2) of the Sch 2 to the 1971 Act. The questions arose (1) whether, having regard to the alternative remedies provided by s 13, the Court should grant leave to apply for judicial review, and (2) whether on such an application the Court had jurisdiction to grant the applicant bail pending its decision. The Court of Appeal held that in the absence of exceptional circumstances, the appeals procedure set out in s 13 of the 1971 Act provided an alternative and appropriate remedy to judicial review. The Court further held that a statement by an immigration officer, when refusing an intending entrant leave to enter the United Kingdom, that she was not satisfied that the intending entrant was genuinely seeking entry as a visitor for a limited period only was, for the purposes of reg 4(1)(a) of the 1984 regulations, an adequate statement of reasons for the refusal. The immigration officer was not required to state the facts and reasoning underlying the decision, since at the time of refusing leave, the Immigration Office was only required to provide the intending entrant with sufficient information to enable him to consider whether to appeal, and the immigration officer's statement provided that information.

Whilst Swati's case is based on foreign legislation, there are similarities with our migration laws. Our Migration Act also provides that a person aggrieved by the Minister's decision may appeal to a Committee of Review. It has been held that in Papua New Guinea an aggrieved person should exhaust his administrative remedies before seeking leave of this Court to judicially review an administrative decision. Here, however, the legislation has given the Minister an executive discretion by virtue of s 6 of the Migration Act, a discretion which cannot be equated with the United Kingdom immigration officer's powers to administer the provisions of the Immigration Act at the point of entry. In the United Kingdom, the Courts have resiled from affording the right of judicial review to persons aggrieved by an immigration officer's administrative act unless there are exceptional circumstances, for there is a prescribed appeal procedure set out in the 1971 Act. In this country, there is an appeal procedure from the decision of the Minister. Although leave appears to have been granted in the associated case of Mr LeBlanc, so far as I can glean from the various decisions and endorsements on the court file, Mr LeBlanc was universally unsuccessful with his various applications for judicial review. Whilst the remedy of judicial review has found favour in the Court in migration cases, it seems that to avoid the somewhat embarrassing saga which occurred in Mr LeBlanc's case, this Court should be very wary of granting leave unless exceptional circumstances can be shown.

Turning to the Minister's executive powers, contrasted with administrative acts of his Director-General or other delegates, to use the phraseology of McDermott AJ in Raz v Matane, the law surrounding the judicial review of immigration decisions in the United Kingdom has taken "an imperceptible turn" from the intrusive conduct of courts by way of review previously, to one that can be seen as less so. On the authority of Premda's case and since the time of SCR No 5 of 1985 (Raz's case), exceptional circumstances justifying leave can only go to alleged breaches of constitutional rights or an application under s 41.

EXPOSITION OF THE TEST UNDER S 41 OF THE CONSTITUTION

I do not consider the Wednesbury principle has any application as such where s 41 of the Constitution is relied on, as is the case here. The proper test is to consider the justification for the Minister's act and the effect of such act and, on balance, decide whether s 41 applies. The test is not that as propounded by McDermott AJ, where he felt free to embark on an enquiry into the ministerial discretion, relying on the Wednesbury principle, but rather whether, on balance, the act of the Minister could be said to be harsh or oppressive. In Premdas' case, Prentice CJ expressly found that the test did not go to an enquiry into the minister's exercise of his powers. Raine J did not admit the Wednesbury test, and both Saldanha and Andrew JJ also agreed that it was not a case for applying Wednesbury principles to the review of the Minister's act. It is, consequently, unnecessary to show, for instance, that the Minister acted with unreasonableness or irrationality (ie Wednesbury unreasonableness) provided that, when one balances the apparent justification for the Minister's act or his expressed reasons with the effect on the aggrieved party, one is left with the clear feeling that such act was "harsh or oppressive" or, in the terms of s 41, "is not warranted, or is disproportionate to, the requirements of the particular circumstances or of the particular case" etc.

In this case, as I have shown, Mr Curran had acted for Mr LeBlanc in judicial review proceedings, which must have afforded him full knowledge of Mr LeBlanc's status in the country. I am further satisfied that the comments attributed to Mr Curran in the newspaper report, not denied by Mr Curran, were factually wrong. Before passing to the other side of the equation, I wish to deal with submissions by the President of the Law Society, Mr Loani Henao, in Mr Curran's favour.

On 24 June 1992, Mr Henao wrote to the Minister for Foreign Affairs. He said in part:

"If what the Papua New Guinea Law Society asserts is correct then the Society is extremely concerned with the actions of the State in this matter, as it clearly impinges on the independence of the legal profession in our democracy. Lawyers should be allowed to pursue the interest of their clients without fear or favour within the bounds of our Constitution. They should not be subjected to threats in any form or manner by the State or individuals if the decisions of the State or the individuals are challenged in the Courts. Our Constitution guarantees individuals, both citizens and non-citizens, the right to legal representation of their own choice. In this country legal representation is provided by both citizen and non-citizen lawyers. Mr Curran, a non-citizen lawyer, was merely discharging his duties as a lawyer to his client as well as to the Court. In the circumstances we respectfully request a reconsideration of your decision with a view to withdrawing those orders."

Whilst that letter post-dates the order of the Minister of 23 June, I consider it is necessary to address the matters raised by Mr Henao, for the effect of this decision on non-national lawyers in the country must give cause for concern. The president quite rightly points out that lawyers should be free to pursue their client's interests, bearing in mind that lawyers have a paramount duty to the Court. As he said in his letter, the Law Society was not aware at the time of writing of the reasons for the Minister's decision in cancelling Mr Curran's visa to remain in the country. The Ministerial Committee of Review, in its letter of 17 July 1992 to Mr Curran, said in part:

"The Committee was of the view that your action in withholding the passport of an undesirable alien contrary to a valid and lawful deportation order was an act constituting a contempt of the government. I regret to advise you therefore that the Committee upheld the Foreign Affairs Minister's decision in ordering your deportation."

Whilst the Committee may have given an adequate statement of reasons for the confirmation of the Minister's decision, the circumstances surrounding the possession of Mr LeBlanc's passport by Mr Curran admit of an explanation consistent with the solicitor/client relationship existing then between Mr Curran and Mr LeBlanc. Mr Curran sought to examine the passport to ascertain just what visas were stamped in the document. As he says, and this is uncontradicted, at no time had an officer of the Immigration Division sought to interview Mr Curran, nor had an officer approached him for the passport. It is not clear whether the department officials were aware that the passport was with Mr Curran at the time that fact was disclosed in the Court proceedings before Sakora J, when Mr LeBlanc's continued presence in the country and his detention was being considered. The absence of the passport during the weekend preceding the court hearing before Sakora J may well have aborted the deportation steps undertaken by the Immigration Division officials to remove Mr LeBlanc from the country by air, but there is nothing to suggest Mr Curran had purposely held Mr LeBlanc's passport with a view to frustrating the officials. The Minister's order affecting Mr Curran was made on Tuesday 23 June. The fact that the passport was in Mr Curran's possession became publicly known on Monday 22 June in the Court proceedings involving Mr LeBlanc. Sakora J refused the writ of habeas corpus, finding that the department's detention of Mr LeBlanc was lawful in the circumstances, and it followed that his deportation order was also lawful. Whilst there is no factual material, this Court can imply that the department found itself in difficulties during the weekend of 20 and 21 June, when it was attempting to deport Mr LeBlanc by air, for he had no passport with him. It is factually correct to say Mr Curran then had Mr LeBlanc's passport, but the Review Committee went on to find that that constituted a contempt of the government. Just what is meant by that phrase is difficult to imagine, except that it clearly implies a course of conduct on Mr Curran's part which has embarrassed the government or its officers or has thwarted the department's wish to deport Mr LeBlanc.

At this point, it is necessary to consider the factual matter which I have found, matters known to Mr Curran and which were also known to the Immigration Division. At the time of the application for the writ of habeas corpus on Sunday 20 June, Mr LeBlanc had no current visa. That temporary visa ordered by Hinchliffe J expired on 30 April. The earlier visa, expressed to expire on 22 October 1992, had been struck out on 16 October 1991. It is not correct to say that Mr LeBlanc had a visa current to 22 October 1992 at the time of Mr Curran's application for a writ of habeas corpus on the Sunday. To all intents and purposes, the judicial review proceedings which had been filed in May by Mr LeBlanc had, by virtue of those undertakings previously recounted, been discontinued.

In all the circumstances then, in the face of the lawful deportation order and detention of Mr LeBlanc, Mr Curran's act of possession of the passport causing, as it undoubtedly did, inconvenience and delay, could be viewed in the very least as unfortunate.

But that threat to professional standards which the President of the Law Society has highlighted in his letter to the Minister, by the actions of the Minister, impinging as it seems on the acknowledged right in the legal profession to approach the Court without fear of penalty by the Government of the day, whether by its executive or any of its servants, must also be taken into account.

The lawyer's professional standing is a matter for the Law Society, his professional body, the Court and, ultimately, the community. Where his duty to the Court conflicts with his duty to his client, the duty to the Court is the paramount consideration. For the reasons that I have previously given, I view Mr Curran's actions in permitting the filing and continued use of Mr LeBlanc's affidavit of 4 May as unwarrantably subordinating his duty to the Court to the duty of the client. As a result, those "consent orders" in those proceedings unnecessarily caused the Minister to take fresh steps to deport Mr LeBlanc, when his right to remain had long been extinguished.

Mr Curran had taken Mr LeBlanc's passport on 17 June for the purpose of inspection, ostensibly to review the entry permits which had been granted, for the purpose of providing legal advice to Mr LeBlanc. This possession post-dated the culmination of those proceedings instituted on 4 May, when, it may reasonably be presumed, Mr Curran would have been appraised of all the visas in Mr LeBlanc's passport. As I say, Mr Curran's possession of the passport may be construed as arising in legitimate circumstances. It did unduly cause the lawful expulsion of Mr LeBlanc to be delayed.

The circumstance of the lawyers conduct towards the Court in Mr LeBlanc's case, the effect of the possession of the passport, and the unfettered nature of the Minister's discretion found in s 6 are relevant matters for this Court's consideration, on balance, in s 41 applications. I have no doubt that, when exercising his discretion, the litany of approaches to the Court by Mr LeBlanc, culminating in the unjustified criticism of the Minister in the press, have played their part.

It must be said, since the Minister has not sought to justify his actions beyond reliance on his powers in the Act, that the burden of satisfying me that s 41 applies rests with the applicant. It is a civil burden, consistent with the test, as propounded, of a balancing exercise. It is open to the Court, however, to use whatever material is before it to deal with the issues raised. Some have been raised by the applicant, for instance, when he brings his professional standing into account. Some are raised by the express words of the Constitution section and other issues I consider to be relevant on the question. The Court is not precluded from an inquiry into the relevant issues on a s 41 application where the Minister deigns not to give reasons. The Court has a duty to properly address the question in any event.

On the other side of the balance, Mr Curran has recounted facts which show he will be financially disadvantaged as a result of the cancellation of his entry visa. I do not consider purely monetary considerations as necessarily falling within the criteria of s 41. Had his contract with Blake Dawson Waldron been cancelled for other reasons, he would have suffered financially and may have had no recourse, certainly none under s 41 of the Constitution. That factor is not, in my judgment, a determinant.

He may also suffer an exaggerated effect to his professional standing in having had his visa to remain in Papua New Guinea cut short for reasons which can be seen to emanate from his work as a lawyer. This may be so, but, on balance, there is no sufficient cause for me to find the Minister's act "harsh and oppressive".

For all these reasons, I would dismiss the application.

ORDER

Application dismissed.

Lawyer for the plaintiff: Blake Dawson Waldron.

Lawyer for the defendants: State Solicitor.